2017 (4) TMI 491

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..... ey are seeking refund claim has not been passed on to any other person. Therefore the appellant have not discharged the burden of proof that the incidence of duty have not been passed on - amount of bank guarantee was encashed by the department towards recovery of the duty, once the bank guarantee amount has been encashed towards excise duty liability, amount has taken the characteristic of excise .....

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..... ppellant to deposit 50% of the duty amount and for remaining 50% to execute the bank guarantee. Accordingly, bank guarantee was executed by the appellant. Subsequently bank guarantee was encashed against confirmation of demand of duty. After the outcome of the dispute of valuation, the amount of duty encashed under bank guarantee stood refundable to the appellant, accordingly appellant filed refun .....

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..... e in case of encashed amount, refund thereof is not governed by Section 11B and unjust enrichment is not applicable. The appellant have strongly relied upon the decision of Hon'ble Supreme Court in case of Oswal Agro Mill Ltd Vs. CCE [1994(73) ELT 51 (SC)], wherein it was held that bank guarantee is only security and not payment and therefore not subject to provisions of Section 11B. 3. .....

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..... e find that the appellant at any stage did not submit any evidence to show that the amount for which they are seeking refund claim has not been passed on to any other person. Therefore the appellant have not discharged the burden of proof that the incidence of duty have not been passed on. Now the only defence taken by the appellant is that as per Hon'ble Supreme Court decision in case of Os .....

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..... ng authority as well as Commissioner(Appeals) have correctly and legally held that sanctioned amount is credited in the consumer welfare fund. As discussed above, judgment of Hon'ble Supreme Court in case of Oswal Agro Mill(supra) is clearly distinguishable for the reason that in the present case the amount sanctioned is not bank guarantee but it is encashed amount of bank guarantee and sa .....

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